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Argument Preview: U.S. v. Stevens

Below, Hanseul Kang previews U.S v. Stevens, one of the three cases to be heard by the Supreme Court on Tuesday, October 6.  Hanseul is a rising third year at Harvard Law School and a summer associate at Akin Gump. Check the U.S. v. Stevens SCOTUSwiki page throughout the summer for additional updates and newly filed briefs. [Note: Patricia Millett of Akin Gump is counsel of record for the respondent.]


18 U.S.C. § 48 prohibits the knowing creation, sale, or possession of depictions of animal cruelty with the intent to place them in interstate or foreign commerce for commercial gain. The legislative history for the statute indicates that Congress was concerned about so-called “crush videos,” in which women “inflict[] . . . torture [on animals] with their bare feet or while wearing high heels,” and which appeal to people with a specific sexual fetish; however, the actual text of the statute on its face covers any depiction of animal cruelty as long as the underlying conduct is illegal in the state where the creation, sale, or possession takes place.

In 2005, respondent Robert J. Stevens was found guilty on three counts of knowingly selling depictions of animal cruelty in violation of § 48 for his sale of videotapes with footage of pit bulls in organized dog fights and hunting excursions. He was not charged with any involvement in the underlying acts depicted in the films, but he had edited the tapes and added introductions, narration and commentary to them, and advertised them for sale. The first person to be tried under § 48, Stevens was sentenced to thirty-seven months of imprisonment, followed by three years of supervised release. He appealed his conviction to the Third Circuit Court of Appeals, which sua sponte heard the case en banc.

Third Circuit Opinion

The en banc Third Circuit overturned Stevens’s conviction, holding that the statute was unconstitutional on its face as a content-based prohibition on protected speech. The court first held that the speech regulated by § 48 is protected under the First Amendment. In its view, only one of the established categories of unprotected speech – child pornography – is even somewhat similar to the speech prohibited under § 48. The Supreme Court’s opinion in New York v. Ferber, holding that child pornography is not protected speech, set forth a number of factors to consider when determining whether to “create” a new category of unprotected speech. Applying these factors to the case at hand, the Third Circuit emphasized that although preventing cruelty to animals is “appealing . . . to our sensibilities,” it is not a compelling governmental interest in the context of free speech. Thus, it held, § 48 fails strict scrutiny because “it serves no compelling government interest, is not narrowly tailored to achieve such an interest, and does not provide the least restrictive means to achieve such an interest.”

Three judges dissented. They would have held that the government interest in preventing animal cruelty is “of paramount importance,” and so far outweighs any value that speech covered by § 48 might have, that depictions covered by the statute can be restricted without violating the First Amendment. Further, they re-characterized Ferber’s holding as applying not simply to child pornography but also to speech that depicts, and therefore requires, infliction of unlawful physical harm on any class of “especially vulnerable victims.” ‘ Petition for Certiorari

The government filed a petition for certiorari in which it urged the Court to grant review because the Third Circuit had erroneously deemed an Act of Congress to be facially unconstitutional. In his brief in opposition, Stevens emphasized his underlying disagreement with the government’s portrayal of the factual background of the case; for example, while the government described one of the videos for which Stevens was convicted as including “scenes . . . of pit bulls viciously attacking other animals,” Stevens explained that the video was meant to show the proper way to train a dog to hunt, and that he “showed footage of some poorly trained dogs to demonstrate improper hunting techniques.” On the questions of law, Stevens portrayed the Third Circuit’s decision as merely applying well-settled Supreme Court precedent to find that depictions of animal cruelty are not categorically unprotected speech. Moreover, he argued, this issue had only “limited practical impact for the government.” The United States disagreed sharply in its reply brief, maintaining both that § 48 was an important part of a broader effort to combat animal cruelty and that the Third Circuit had failed to apply the Supreme Court’s framework for analyzing First Amendment facial challenges. According to the government, a party challenging a statute that reaches both protected and unprotected speech must establish real and substantial overbreadth in relation to the legitimate sweep of the statute in order to succeed.

Petitioner’s Brief

In its brief on the merits, the government emphasizes that the fundamental test for determining whether a category of speech is protected under the First Amendment remains the one set forth in Chaplinsky v. New Hampshire. That test requires the court to balance the value of the speech against its social cost, without necessarily looking to the pre-existing categories. The Third Circuit should have applied this balancing test, the government argues, rather than seeking to analogize § 48 to an existing category of unprotected speech. Applying the balancing test, the government emphasizes that the statute was carefully drafted to limit its scope to “harmful material with little or no social utility”: it requires that the material depict a living animal that is seriously injured or killed and that the material be knowingly created, sold or possessed with the specific intention of placing it in interstate or foreign commerce for commercial gain. Moreover, the government notes, the statute contains an exception for works of serious value. Because the statute is narrowly tailored to reach only truly harmful speech with low value, the harm caused by the speech greatly outweighs its expressive value.

However, even if § 48 reaches some speech protected by the First Amendment, the government continues, it is not facially invalid. To prevail on a facial challenge to a statute that applies to both protected and unprotected speech, the challenger must show that § 48 is substantially overbroad in relation to its legitimate sweep. The overbreadth doctrine “balances a law’s potential to chill protected speech” against the obvious harm of invalidating a law when some of its applications are legitimate and constitutional. In this case, the government argues, the Third Circuit failed to apply this doctrine; instead, it conducted a strict scrutiny analysis and found the statute facially unconstitutional, notwithstanding that some applications of the statute are clearly constitutional. Given these valid applications, isolated hypothetical applications are insufficient to show the overbreadth required to find a statute facially invalid.

Respondent’s Brief

In his brief on the merits, Stevens responds directly to the government’s argument that § 48 should be analyzed by weighing the value of speech against its social costs. He argues that using this kind of “legislative ‘balancing analysis’” to create categories of unprotected speech is contrary to both the text of the First Amendment and established case law. And, he contends, § 48 clearly covers protected speech, as demonstrated by the widely accepted uses of imagery similar to that in his videotapes, such as documentaries about dogfighting and slaughterhouses, literature and other cultural works about Spanish bullfights, well-known movies with depictions of animal cruelty, and popular hunting videos. These uses, he emphasizes, are not criticized, much less prosecuted. Furthermore, Stevens pointedly notes that many of the animal rights groups that filed briefs as amici in support of the government use similar images in their own advocacy to raise awareness and support for their causes, suggesting that the only difference between their use and his is the viewpoint expressed.

Given that the category of speech at issue here is protected, Stevens argues that § 48 cannot survive exacting scrutiny because it does not advance a compelling interest, and is neither narrowly tailored nor the least restrictive means of advancing its stated interest. Although the government claims that the compelling interests at issue are “animal cruelty and animal-fighting,” the legislative history specifically disavowed these broad purposes and instead focused on the specific problem of “crush videos.” In addition, the speech prohibited under § 48 is not integrally related to the underlying conduct of animal cruelty or animal-fighting, unlike in the context of child pornography. Thus, even if the legislative history did not indicate otherwise, these purposes simply not serve as a compelling interest to justify the statute. Stevens also maintains that the statute is overbroad and that the government errs in attempting to shift the burden of proof to him. He notes that he is a party to this case because of a criminal prosecution for his speech which fell into a category barred by § 48, not a facial challenge that he chose to bring. It was Congress that acted to prohibit this entire category of speech and the government that opted to prosecute Stevens on the theory that his speech fell within this category, rather than attempting to show that Stevens’s actual speech was unprotected for a particular reason.